Citation Nr: 21008046 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 15-21 534 DATE: February 11, 2021 REMANDED Entitlement to service connection for malignant melanoma, to include as due to herbicide agents exposure or Camp Lejeune contaminated water (CLCW) exposure, is remanded. REASONS FOR REMAND The Veteran had active service in the Marines Corps from June 1965 to June 1969, to include verified service in the Republic of Vietnam and at Camp Lejeune, North Carolina. This appeal comes before the Board of Veterans’ Appeals (Board) from a November 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely appealed that decision. Although the Veteran requested a Board hearing, he did not show for his January 2017 Board hearing. He has not presented good cause for failing to show for his hearing and the Board therefore finds that the hearing request is withdrawn. The Veteran contends that his skin cancer is related to service, including as due toe to contaminated waters in Camp Lejeune and herbicide agents exposure while serving in the Republic of Vietnam. The Veteran’s DD Form 214 and military personnel records indicate that he served in Vietnam from December 1966 to December 1967 and at Camp Lejeune from August 1965 to October 1965 and from January 1968 to July 1968. He is therefore presumed to have been exposed to herbicide agents and contaminated water during service. While the Veteran’s diagnosed malignant melanoma is not a disability recognized as presumed related to exposure to herbicide agents or contaminated water at Camp Lejeune, that fact, in and of itself, does not preclude the Veteran from establishing that these disabilities are related to those exposures. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). Notwithstanding the presumptive provisions, service connection for malignant melanoma based on exposure to herbicide agents and/or contaminated water at Camp Lejeune may also be established by showing that the disease is, in fact, causally linked to such exposure. A VA medical opinion was obtained in September 2014. The VA examiner concluded that the Veteran’s malignant melanoma was “not caused by or a result of the Veteran’s exposure to CLCW.” As rationale, he stated that the Veteran was exposed to CLCW for 220 days and was not diagnosed with malignant melanoma until May 2011, and the Veteran had other risk factors for developing the disease. Moreover, the examiner stated that the Veteran’s exposure is lower than the average duration of exposure of 18 months in published studies. However, the Board finds that the VA medical opinion is inadequate. First, in providing a negative etiology opinion, the examiner did not use the correct standard of “at least as likely as not.” In addition, the examiner only discussed whether the Veteran’s malignant melanoma was related to CLCW, but did not address the nature and etiology of the Veteran’s disability, including as due to exposure to herbicide agents during service in Vietnam or sunburns during service. In this case, there is evidence suggesting an association between herbicide agents exposure and malignant melanoma, but there is no medical opinion as to whether the disability is related to the Veteran’s exposure to herbicide agents. Accordingly, the Board finds that a VA examination and opinion is necessary to determine whether the Veteran’s claimed disability was caused by or etiologically related to exposure to herbicide agents during active service. In addition, the Veteran has asserted that upon returning to Camp Lejeune from Vietnam in January 1968, he received treatment at the Naval Medical Field Research Laboratory for biopsy and other testing for growths under his arms and on groin. See May 2014 VA Form 21-4138, Statement in Support Claim. To date, no such request for development has been undertaken by the RO and must be completed on remand. Finally, the Veteran reported seeing a civilian physician during service for a skin rash and the Veteran should be asked to provide releases for any relevant private treatment records or submit his own copies of records. The matter is REMANDED for the following action: 1. Provide the Veteran release forms and ask that he identify any relevant private treatment records. Upon receipt of such, VA must take appropriate action to contact the identified providers and request complete treatment records. The Veteran should be informed that in the alternative he may obtain and submit the records himself. 2. Obtain the Veteran’s treatment records from the Naval Medical Field Research Laboratory at Camp Lejeune, NC, from January 1968 to July 1968. 3. Schedule the Veteran for a VA medical examination with an appropriate medical professional to assess the current nature and likely etiology of his diagnosed malignant melanoma, to include as due to exposure to herbicide agents and/or Camp Lejeune contaminated water. The VA examiner must review the claims file in its entirety, and that review must be noted in the examination report. Thereafter, the examiner must provide an opinion with respect to whether it as least as likely as not (50 percent or greater probability) that the Veteran’s malignant melanoma was related to his military service, to include presumed exposure to herbicide agents while serving in the Republic of Vietnam, contaminated waters while serving at Camp Lejeune, NC, and exposure to sun during active service. In rendering the above opinion, the examiner must discuss the Veteran’s lay assertions, to include his reports of multiple incidents of sunburn, high levels of Agent Orange exposure, and infrequent showering while stationed in Vietnam. The examiner must set forth a complete rationale for the conclusion(s) reached. If an opinion cannot be reached without resorting to speculation, the examiner must explain why. The examiner is reminded that the term “at least as likely as not” does not mean “within the realm of possibility.” Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. Note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. The Veteran’s lay contentions must be considered and weighed in making the determination as to whether a nexus exists between his disability and service, or alternatively, exposure to contaminated waters or herbicide agents. Likewise, the mere fact that a presumption has not been established for the particular disease at issue is not dispositive of the issue of nexus. Consideration must still be given to the exposure. 4. After ensuring compliance with the above, readjudicate the claim on appeal. If the benefit sought on appeal remains denied, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. JESSICA SEAY Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kovacs, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.